SELECTED CASE LAW
ONTARIO:
In 2015 ONSC 6813, a high school teacher, Mr. J, was charged with voyeurism after using a pen camera to surreptitiously record female students and staff. Mr. J’s pen camera emitted a red light, and a fellow teacher noticed that he often pointed it at his female students. Police later discovered that the pen contained a USB drive and had been used to take video recordings. Officers found three active video files on the seized camera: one of an empty classroom, one of an adult woman (panning from her face to her breasts) and one of a teenage girl (again, panning from face to breasts several times). Forensic analysis revealed 17 more videos. 27 of the 30 surreptitiously recorded individuals were female high school students. Although all subjects were fully clothed, a number of the recordings focused exclusively on girls’ breasts.[1]
The key issues at trial were (i) whether the video subjects had a reasonable expectation of privacy in the circumstances, and (ii) whether the recordings were made for a sexual purpose. The Court concluded that the students had an expectation of privacy, but held that it was not satisfied beyond a reasonable doubt that the recordings had been made for a sexual purpose. To the latter point, the Court writes,
The determination of whether an image or images are intended to cause sexual stimulation must be assessed on the totality of the evidence. Nudity, sexual contact or sexual posing, indicia of sexual stimulation, whether the images are associated with sexual activities, other indicia of sexuality, whether the images are a series in a collection of sexual materials or whether they have been surreptitiously taken are all relevant considerations […] There was no evidence advanced in this trial regarding the accused’s purpose or sexual interest in recording the students’ cleavage or breasts. Of course, unless the accused testified as to his purpose, reliance must be made on the totality of the circumstantial evidence. […] Unlike other cases proffered by the Crown attorney, the students here are fully clothed and not so situated, that I am persuaded that the recordings, even with images that predominately display the students’ cleavage, have as their focus the student’s sexual organs. While a conclusion that the accused was photographing the student’s cleavage for a sexual purpose is most likely, there may be other inferences to be drawn that detract from the only rationale conclusion required to ground a conviction for voyeurism.[2]
Left with reasonable doubt as to whether the recordings were made for a sexual purpose, the Court acquitted J.
[1] Discussing the students’ reasonable expectation of privacy at school, the Court notes, “It may be that a female student’s mode of attire may attract a debate about appropriate reactions of those who observe such a person leading up to whether there is unwarranted and disrespectful ogling. That being said, it is equally reasonable to expect that close-ups of female students’ cleavage or breasts will not be captured by a pen camera as a permanent record. There is no dispute that the female students had a subjective expectation of privacy”: 2015 ONSC 6813 at 46-47.
[2] 2015 ONSC 6813 at s 68-77.
Criminal Offence(s): Voyeurism